SA Taxi Development Finance (Pty) Ltd v Makhanyi (35148/12) [2013] ZAGPJHC 195 (10 June 2013)

IN THE SOUTH GAUTENG HIGH COURT,

JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO : 35148/12

In the matter between:

SA TAXI DEVELOPMENT FINANCE (PTY) LIMITED Plaintiff And MAKHANYI, BHEKOKWAKHE HEMILTON Defendant

JUDGMENT

KOLBE AJ:

[1] This is an application for summary judgment in which the Plaintiff seeks return of a certain Toyota Quantum vehicle (“the vehicle”).

[2] In the summons issued against the Defendant on 14 September 2012, the Plaintiff alleges that it had leased the vehicle to the Defendant in terms of a written lease agreement, entered into on 6 December 2011, against payment of an initial deposit and monthly rentals of R10 555,22.

[3] It is further alleged that the Defendant is in breach of the agreement, that a notice in terms of Section 129 of the National Credit Act, Act No. 34 of 2005 (“the NCA”) had been sent to the Defendant who remained in default and that the Plaintiff terminated the lease agreement.

[4] In the affidavit resisting summary judgment the Defendant does not deny being in breach of the lease agreement but raises certain technical defences to the application.

[5] I shall deal with these defences seriatim.

ABILITY OF THE DEPONENT TO THE AFFIDAVIT FILED IN SUPPORT OF THE SUMMARY JUDGMENT APPLICATION TO DEPOSE THERETO

[6] The Defendant contends that the deponent to the affidavit filed in support of the summary judgment application (“the deponent”), lacks the required personal knowledge of the facts underlying the Plaintiff’s cause of action to depose to the affidavit.

[7] In support of this contention, the Defendant attached to his affidavit, a copy of an unreported judgment in the matter of the SA Taxi Securitisation (Pty) Limited v Bongani, case number 00643/2012 handed down on 8 April 2012 and signed on 18 April 2012, in which Coppin J, in dealing with the same deponent and an affidavit containing almost identical averments, came to the conclusion that she did not have the necessary personal knowledge to depose to the affidavit.

[8] However, in a subsequent, also unreported, judgment in the matter of of SA Taxi Securitisation (Pty) Ltd v Maleboho Matlere, handed down on 20 April 2012 under case number 2125/2012 Satchwell J, also dealing with the same deponent and almost

identical averments in the affidavit, found that there was no reason to dispute the deponent’s authorisation or her knowledge as claimed by her especially since she caused certain annexures to be attached to her affidavit which clearly shows that she has knowledge of the documentation referred to.

[9] The deponent states that she is the legal manager of the Plaintiff, that in consequence of such position she has in her possession and under her control the files and records of the Plaintiff pertaining to the matter, the contents of which she had familiarised herself with during the course of the Plaintiff’s dealings with the Defendant and for purposes of this matter. She further states that by virtue thereof, she has personal knowledge of the facts deposed to.

[10] I am satisfied having considered all the documents placed before this Court that the deponent has sufficient knowledge of the matter to swear positively to the facts thereof.

DISPUTED QUANTUM

[11] The Defendant states that he disputes the quantum of the alleged arrears and in support thereof attaches as Annexure “BHM3” a print-out of a bank statement reflecting all payments which the Defendant had allegedly made.

[12] Upon closer inspection, it is evident that “BHM3” is in fact not a bank statement but deposit slips reflecting sporadic payments allegedly made to the Plaintiff.

[13] It is submitted on behalf of the Plaintiff that if the Defendant had been bona fide, he would have annexed a bank statement reflecting all payments made in terms of the agreement on the monthly basis which he had failed to do.

[14] I agree with the submission on behalf of the Plaintiff that challenging the quantum of the arrears does not afford the Defendant a defence to the Plaintiff’s claim for return of the vehicle as he admits that he is in breach of the agreement, a fact which entitles the Plaintiff to cancel the agreement which the Plaintiff has elected to do.

NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 129 OF THE NCA

[15] The Defendant states that he had not received the notice in terms of Section 129 of the NCA and further contends that the mode of remittance, namely by way of registered mail, is invalid and that the document attached as proof of sending does not have a signature of the person who sent the post.

[16] In my view that the Plaintiff has complied with the provisions of Section 129 of the NCA in that:

[16.1] the notice was sent by pre-paid registered post to the Defendant’s chosen domicilium citandi et executandi; and

[16.2] the Plaintiff showed that it was sent to the correct post office; and

[16.3] the Plaintiff does not have to show that the notice was collected by the Defendant.

NON-COMPLIANCE WITH CLAUSE 8.2.2 OF THE AGREEMENT

[17] In terms of clause 8.2.2 of the agreement, the Plaintiff may, after due demand, cancel the agreement, obtain possession of the vehicle and recover from the lessee any and all amounts which are due, owing and payable together with such damages as the lessor may in law claim. The clause further provides that for purposes of that sub-clause “due demand” shall mean immediately on demand unless the lessee is entitled to notice in which case “due demand” shall mean the giving of such notice to which the lessee is entitled.

[18] It is the Defendant’s case that the Plaintiff had not made “due demand”.

[19] It is contended on behalf of the Defendant that even if the Section 129 notice had been correctly sent, it is a statutory requirement and is not a letter of demand as contemplated in the agreement.

[20] There is in my view no merit in this submission in that the notice specifically states that:

[20.1] the Defendant is in arrears and in particular that the Defendant had been in arrears for a period exceeding 20 business days;

[20.2] that the Plaintiff has elected to claim immediately payment of instalments due in terms of the agreement; and

[20.3] failing compliance, the agreement will be cancelled.

[21] In my view, the notice constituted proper notice of cancellation and if not, did so in the summons .

[22] There has in my view been proper cancellation of the agreement.

RECKLESS CREDIT

[23] The Defendant contends the granting of credit to him was reckless but fails, as pointed out on behalf of the Plaintiff, to attach his monthly income to the affidavit resisting summary judgment.

[24] It is further submitted on behalf of the Plaintiff, that the Defendant failed to seek advice and/or apply for debt review to which he was entitled and that the Defendant is in effect now seeking to circumvent his rights in terms of Section 86 of the NCA by requesting this Court to declare him over-indebted in terms of Section 85 as a last resort to avoid judgment being granted against him.

[25] I agree with the submission on behalf of the Plaintiff that no factual allegations supporting the alleged defence of reckless credit in terms of Section 80 of the NCA appear from the affidavit resisting summary judgment.

[26] In my view, the Defendant has failed to set out a bona fide defence to the Plaintiff’s claim.

[27] In the result I make the following order:

Summary judgment is granted against the Defendant for immediate return of a motor vehicle, a 2011 Toyota Quantum Sesfikile 15 seater (roof hatch), petrol, with engine number 2TR8376748 and chassis number JTFSX22P606115376 together with attorney and client costs to be taxed.

KOLBE AJ